CHEN (Migration)

[2018] AATA 2471

CHEN (Migration) [2018] AATA 2471 (1 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HEMING CHEN

CASE NUMBER:  1809471

HOME AFFAIRS REFERENCE(S):          BCC2017/5006844

MEMBER:Mara Moustafine

DATE: 1 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.215 of Schedule 2 to the Regulations.

Statement made on 01 June 2018 at 5:34pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Adequate arrangements for health insurance – New Confirmation of enrolment – Renewed overseas student health cover – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cl 500.215

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 December 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) he had not provided evidence of adequate arrangements in Australia for health insurance during the period of his intended stay in Australia.

4. The applicant was assisted in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets the criterion in cl. 500.215. That criterion requires that at the time of the decision, the applicant must have provided the Minister with evidence of adequate arrangements in Australia for health insurance during the period of the applicant's intended stay in Australia.

7. The applicant applied for a Student visa on 29 December 2017, providing their Overseas Student Health Cover from BUPA, outlining that the applicant had insurance coverage from 23 February 2015 to 23 March 2019. As this was not sufficient evidence of adequate arrangements in Australia for health insurance, on 12 January 2018 the Department requested the applicant to provide evidence of adequate health insurance for the duration of his stay in Australia within 28 days. However, this was not forthcoming. The Department was, therefore, not satisfied that the applicant met clause 500.215 for the grant of the Student visa and refused to grant her the visa on 28 March 2018.

8. The applicant applied to the Tribunal for a review of that decision on 5 April 2018.

   On 3 May 2018 the Tribunal wrote to the applicant through his registered migration agent requesting him to provide a copy of his current Confirmation of Enrolment (COE) and evidence of adequate arrangements for health insurance from an approved provider during the period of his intended stay in Australia.  

9. On 3 May 2018 the applicant’s migration agent emailed to the Tribunal documents in support of his application and a submission, in which he stated that the COE provided with the applicant’s student Visa application had an incorrect end date and that the university had now issued a new COE. He provided the old COEs for Bachelor or Medical Mathematics (01/01/2018  to 30/07/2019), the new for Bachelor or Medical Mathematics (01/01/2018  to 30/12/2018) and a  verification letter of Overseas Student Health Cover (OSHC) from BUPA which  confirmed that the applicant had renewed his OSHC from 23/05/2018 to 23/03/2019  and stated that his cover originally commenced on 23/02/2015, from which time he had continuous OSHC cover.

10. After considering the available evidence, the Tribunal found that pursuant to section 360(2)(a) of the Act, it should decide the review in the applicant’s favour. Therefore no hearing was required.

11. At the date of the primary decision, the delegate found that the applicant did not hold adequate health insurance to cover the entire period of her intended stay in Australia and therefore did not meet the requirements of clause 500.215.

12. On 3 May 2018, the Tribunal was provided with evidence that the applicant holds health insurance during the entire period of his intended stay in Australia, thereby satisfying the requirements of 500.215.

13. Accordingly, the Tribunal is satisfied that the applicant meets cl.500.215.

14. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

15. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.215 of Schedule 2 to the Regulations.

    Mara Moustafine
    Member